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Sex Offenders, Social Media and Freedom of Speech

On June 19th, 2017 the Supreme Court ruled that restricting sex offenders access to social media platforms children have access to was unconstitutional. Some organizations throughout the country are fighting to lessen restrictions on sex offenders because many of the restrictions make it difficult for them to continue to live their lives normally after they have served their sentence. (See our previous post on this topic for more information and a lively debate in the comments section exploring the difficult issues involved.)

So what are the issues involved in the Supreme Court case?

Background on Crimes and Convictions as Sex Offenders

A registered sex offender is a male or female, convicted of a crime involving a sexual act where after they have served their criminal sentences or when they have been released on parole, the federal, state or local laws require them to be placed on the Sexual Offender Registry. Sex offender registries are systems in various countries designed to allow government authorities to keep track of the residence and activities of sex offenders, including those who have completed their criminal sentences. The definitions of sex crimes differ from jurisdiction to jurisdiction and range from misdemeanors to felonies. There are three different “tiers” that sex offenders can be placed in based on of the severity of their crimes in the United States:

Tier I Offenses typically are of a non-violent nature with persons of the “age of majority” or legally classified as an adult. These offenses require registration on the Sexual Offender Registry for a minimum of 15 years and verification of information on a yearly basis.
Examples are: public indecency (lewdness), voyeurism, possession of child pornography (includes teen sexting) and sexual contact without consent.

Tier II Offenses involve minors but are usually of a non-violent nature. These offenses require being registered on the Sexual Offender Registry for no less than 25 years and verification of information twice a year.
Examples are: any new offense committed by Tier I sex offenders, trafficking or transportation of minors for the purposes of sexual activity, using intimidation or bribery to elicit sexual activity, any sexual contact or acts with kids between the ages of 12-15, any sexual offenses where the offender has a position of authority over the victim (a parent, guardian, babysitter, teacher, etc), production or distribution of pornography (including minors), and finally, any plans to commit or attempt to commit any of the above.

Tier III Offenses are the most serious designation for sex offenders. This tier includes people convicted of non-violent and violent acts with adults or minors. Tier III Offenses require lifetime registration on the Sexual Offender Registry and verification of their information on a quarterly basis.
Examples are: any new offense perpetrated by Tier II sexual offenders, almost all sexual assaults, sexual acts where the victim is rendered impaired or unconscious from drugs or alcohol, where force was used or the victim was under duress, where the victim is unable to consent due to mental impairment or disability, where the victim is unable to physically decline the act, where the victim is under the age of 12, where the victim communicates their unwillingness to participate in the sexual act, and finally, any plans to commit or attempt to commit any of the above.

What is the Background for this Case?

North Carolina v. Packinghamis a case from 2010 whereLester Packingham, previously convicted of taking “indecent liberties” with a minor in 2002, was arrested for violating North Carolina’s law regarding convicted sex offenders and social media. Packingham was sentenced to the standard 10-12 month imprisonment, followed by 24-months supervised release. There were no special stipulations apart from being told to “remain away from” the minor involved in the case. In 2010, Packingham posted on his Facebook profile about having a parking ticket dismissed and was subsequently arrested for being on social media.

What is North Carolina’s ban on sex offenders from social media? This law, passed in 2008, made it a felony for any person on North Carolina’s sex offender registry to “access” any “commercial social networking website” the person “knows” does not restrict usage to legal adults. The intent of the law is to prevent sexual predators from gathering information about and interacting with minors, but other parts of the bill are said to attempt to “drive an unpopular and politically powerless group of people out of public life altogether.”

After his arrest, Packingham argued the North Carolina law violated his First Amendment rights but was convicted of the felony charge in trial court. This trial court found the state had a “weighty interest” to keep sexual predators off social media websites to protect minors. Proceeding the first trial, the North Carolina Court of Appeals reversed the decision and held the social media website provision of the law was unconstitutional. Then, the North Carolina Supreme Court reversed their reversal and held the law was constitutional. They found the law was a “limitation on conduct” and not a restriction of free speech. The court also found the state had a sufficient interest in “forestalling the illicit lurking and contact” of registered sex offenders and their potential future victims.

Due to these different rulings, the case was asked to be brought before the US Supreme Court where they were tasked with answering this question:

Does a North Carolina law prohibiting registered sex offenders from accessing various websites, where minors are known to be active and have accounts, regardless of whether or not the sex offender directly interacted with a minor, violate the First Amendment?

The Case

The case was argued on February 27th, 2017 and the unanimous 8-0 vote was made on June 19th, 2017 (although the new Supreme Court Justice Gorsuch is on the court now, he did note take part in this case). The court ruled everyone should “have access to places where they can speak and listen, and then, after reflection, speak and listen once more.” The reason the ruling was unanimous was that the North Carolina law “is not narrowly tailored; it does not leave open ample alternative channels for the First Amendment activities it burdens; and it does not directly or effectively future the government’s interests.” The law not only restricted access to social media, but also barred access to “a large number of websites” – like Amazon, The Washington Post, and WebMD – websites “that are most unlikely to facilitate the commission of a sex crime against a child” according to Justice Samuel Alito.

When speaking about the case, Justice Anthony Kennedy wrote, “To foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights. Even convicted criminals — and in some instances, especially convicted criminals — might receive legitimate benefits from these means for access to the world of ideas, in particular, if they seek to reform and to pursue lawful and rewarding lives.”

General Ken Paxton who opposed the ruling said: “The problem is that social media is a dangerous place for children and that registered sex offenders disproportionately commit additional sex crimes online.”

Related Bills

Lousiana and Texas are the only other states that have laws similar to this North Carolina law, however, many states have laws that require sex offenders to provide information about their internet use to authorities. The Louisiana law only applies to people convicted of sex crimes with children. In Texas, they updated their criminal handbook to prohibit prisoners from having personal pages on Facebook, Twitter or Instagram run in their name by others.

Currently, there are 20 bills that have to do with sex offenders access to the internet and social networking sites. IL HB0653 aims to make it unlawful for a child sex offender to knowingly communicate using the Internet or any other digital media with a person under 18 or with a person whom he or she believes is under 18, unless the offender is a parent or guardian of the person. NJ A1253 requires sex offenders to provide the appropriate law enforcement agency with their email address, username, or identifier that is used on the Internet to ensure compliance with the restrictions on their activities.

NY S05321 bans sex offenders who have a level 2 or 3 designation, whose sex offense was committed against a minor or who used the internet to facilitate their sex offense, from using the internet to access pornography, access sites promoting sexual relations with minors or access social networking sites. NY A06293 requires sex offenders to register with the division no later than ten days after any change of internet accounts with internet access providers belonging to them and internet identifiers they use.

Following this, many states limit internet use as a condition of parole or probation, restrict access and interaction with children’s social media accounts, protect social media privacy or have other laws to protect children from possible harm or sexual offenses on the internet.

MN SF1895 states throughout all phases of intensive probation, the offender shall submit at any time to an unannounced search of the offender’s person, vehicle, computer and other devices that access the Internet or store data, or premises by a probation agent.

MA S991 and MO HB564 restrict educational institutions and their teachers, coaches, volunteers, etc. from requiring social media account information from students, add or interact with students via their social media. NY A05354 relates to threats made against children via the internet and social media for their school based teen dating violence prevention program.

IN HB1533 requires the attorney general to compile a list of websites that contain indecent content or promote human trafficking, however, if the site is a social media site that has its own filter for this type of content. The attorney general will have to investigate when websites that have this blocking filter fail to block content. SC H3199, the Digital Impersonation Prevention Act, makes it a misdemeanor for a person who knowingly and without consent intentionally impersonates another person with the intent to harass or harm through or on an internet website or by other electronic means.

There are many different restrictions for sex offenders which impact many different parts of their lives. Restrictions imposed by sex offender registries include limitations on where people can live, work and exist in society. The registry and its information (usually name and aliases, current address, offense(s) and a photograph) is open to the public in the United States and creates issues for people when they move with neighbors, landlords and bosses due to social prejudice. The social prejudice and issues surrounding access to normal life for sex offenders is difficult and needs to be addressed, but I do believe it is important to take steps to protect our children from unwanted harm (from everyone, not just sex offenders) on the internet within reason.

Bills have been proposed to do this in many different forms and areas throughout the US. I don’t think it is ridiculous to have some reasonable protections put in place, especially for tier three offenders, to ensure they are not endangering minors online. I also believe bills like the North Carolina law infringe on people’s free speech and ability to live their life normally after they have completed their sentence. We give almost all other criminals a second chance at life after they pay their debt to society; sex offenders deserve the same chance of rehabilitation and life. What are your thoughts on this?